Commissioners illegally cast votes by telephone

By NICOLE CARTRETTE
Staff Writer

Commissioners voted 5 to 2 by phone last week to go with the next lowest bidding contractor for part of the Water District V project. The owner of the company awarded the contract in November 2006 died last month.

Voting by phone is a violation of the N.C. Open Meetings law.

It is unclear why commissioners were rushed to vote by phone last Thursday to pursue a performance or bid bond (insurance that the contractor completes the work) or go with the next lowest bidder. The contractor, Joshua Goodyear, 46, of Fairmont died unexpectedly March 16 weeks before the vote was taken.
Two public commissioner meetings have been held since and no mention was made of the circumstances.

In 1994 the N.C. Court of Appeals ruled that the Onslow County Board of Education’s action to give itself a pay raise had to be deliberated at a meeting open to the public. The chairman had contacted each board member and it was later discussed in a closed session but never an open meeting.

“If they leave it at that and don’t take a vote,” David Lawrence of the Institute of Government said it would be an open meetings violation. Lawrence said he would advise the board to vote at their next meeting. He referred to the 1994 case law involving the Onslow County school board.

“We’ll look at the next low bidder,” County Manager Jim Varner said Tuesday, never indicating any vote had been taken by phone. “I don’t know the facts.”

Varner said the engineer and representative with the lender had spoken with T. A. Loving Company (the next lowest bidder). “I’ve never had anything happen like this,” Varner added.

When asked if commissioners would need to take a vote on the matter, Varner said, “Yes, they will need to vote on this.”

“It will be done in open session,” said Commissioner Bill Memory who heard weeks ago that the contractor had died.

He said it was an unfortunate situation in which the contractor died unexpectedly and his widow needed to get out of the contract.

Goodyear had a good reputation and his death did not seem a justifiable reason for pursuing any type of bond, Memory explained. No money had been expended and no work had begun on the project.

Seeking the bond insurance could have resulted in a long and drawn-out legal battle, Memory added. “Water District V can’t wait two or three years.”

Memory said it was not discussed in the board’s most recent meeting because much of the information had not been gathered yet and administration was trying to figure out what needed to be done by contacting all the parties involved, including the lender.

“They had to have an answer right away,” Memory said. “We probably should have had a special meeting,” he said, adding that staff was “just asking about what to do.

“It was a straw poll, nothing official.”

Commissioner Lynwood Norris said the decision was based on what the lender recommended and moving on with the second lowest bidder was the suggestion.

He said there is no indication the project will not be completed on schedule, despite the necessary change.

Grand Strand Water and Sewer will provide sewer in the area but not until the water lines are completed. The county reached an agreement with GSWSA last year to provide sewer at no cost to the county.

In November 2006, Goodyear Construction was awarded one of two contracts to construct 60 miles of water main to the Dothan Community.

Their low bid was about $2.7 million compared with the next lowest bidder, T.A. Loving Company, with a bid just under $2.9 million.